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8-K - FORM 8-K - EQUITY RESIDENTIAL | c61775e8vk.htm |
Exhibit 3.1
EQUITY RESIDENTIAL
SEVENTH AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of Equity Residential (the
Company) shall be located at such place as the Board of Trustees may designate.
Section 2. ADDITIONAL OFFICES. The Company may have additional offices, including
a principal executive office, at such places as the Board of Trustees may from time to time
determine or the business of the Company may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE. All meetings of shareholders shall be held at the principal
executive office of the Company or at such other place as shall be set by the Board of Trustees and
stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the shareholders for the election
of Trustees and the transaction of any business within the powers of the Company shall be held each
year, after the delivery of the annual report, at a convenient location and on proper notice, on a
date and at the time set by the Trustees. Failure to hold an annual meeting does not invalidate
the Companys existence or affect any otherwise valid acts of the Company.
Section 3. SPECIAL MEETINGS.
(a) General. The Chairman of the Board, the Chief Executive Officer, the
President or one-third of the Trustees then in office may call a special meeting of the
shareholders. Subject to subsection (b) of this Section 3, a special meeting of shareholders shall
also be called by the Secretary of the Company to act on any matter that may properly be considered
at a meeting of shareholders upon the written request of shareholders entitled to cast not less
than a majority of all the votes entitled to be cast on such matter at such meeting.
(b) Shareholder-Requested Special Meetings. (1) Any shareholder of record seeking
to have shareholders request a special meeting shall, by sending written notice to the Secretary
(the Record Date Request Notice) by registered mail, return receipt requested, request the Board
of Trustees to fix a record date to determine the shareholders entitled to request a special
meeting (the Request Record Date). The Record Date Request Notice shall set forth the purpose of
the meeting and the matters proposed to be acted on at it, shall be signed by one or more
shareholders of record as of the date of signature (or their agents duly authorized in a writing
accompanying the Record Date Request Notice), shall bear the date of signature of each such
shareholder (or such agent) and shall set forth all information relating to each such shareholder
and to each individual whom the shareholder proposes to nominate for election or re-election as a
Trustee that would be required to be disclosed in connection with the solicitation of proxies
for the election of trustees in an election contest (even if an election contest is not involved),
or would otherwise be required in connection with such solicitation, in each case pursuant to
Regulation 14A (or any successor provision) under the Securities Exchange Act of 1934, as amended
(the Exchange Act). Upon receiving the Record Date Request Notice, the Board of Trustees may fix
a Request Record Date. The Request Record Date shall not precede and shall not be more than ten
days after the close of business on the date on which the resolution fixing the Request Record Date
is adopted by the Board of Trustees. If the Board of Trustees, within ten days after the date on
which a valid Record Date Request Notice is received, fails to adopt a resolution fixing the
Request Record Date, the Request Record Date shall be the close of business on the tenth day after
the first date on which the Record Date Request Notice is received by the Secretary.
(2) In order for any shareholder to request a special meeting to act on any matter that may
properly be considered at a meeting of shareholders, one or more written requests for a special
meeting (collectively, the Special Meeting Request) signed by shareholders of record (or their
agents duly authorized in a writing accompanying the request) as of the Request Record Date
entitled to cast not less than a majority of all of the votes entitled to be cast on such matter at
such meeting (the Special Meeting Percentage) shall be delivered to the Secretary. In addition,
the Special Meeting Request shall (a) set forth the purpose of the meeting and the matters proposed
to be acted on at it (which shall be limited to those lawful matters set forth in the Record Date
Request Notice received by the Secretary), (b) bear the date of signature of each such shareholder
(or such other agent) signing the Special Meeting Request, (c) set forth (i) the name and address,
as they appear in the Companys books, of each shareholder signing such request (or on whose behalf
the Special Meeting Request is signed), (ii) the class, series and number of all shares of the
Company which are owned of record by each such shareholder, and (iii) the nominee holder for, and
number of, all shares owned by such shareholder beneficially but not of record, (d) be sent to the
Secretary by registered mail, return receipt requested, and (e) be received by the Secretary within
60 days after the Request Record Date. Any requesting shareholder (or agent duly authorized in a
writing accompanying the revocation or the Special Meeting Request) may revoke his, her or its
request for a special meeting at any time by written revocation delivered to the Secretary.
(3) The Secretary shall inform the requesting shareholders of the reasonably estimated cost of
preparing and delivering the notice of the meeting (including the Companys proxy materials). The
Secretary shall not be required to call a special meeting upon shareholder request and such meeting
shall not be held unless, in addition to the documents required by paragraph (2) of this Section
3(b), the Secretary receives payment of such reasonably estimated cost prior to the preparation and
delivering of any notice of the meeting.
(4) In the case of any special meeting called by the Secretary upon the request of
shareholders (a Shareholder Requested Meeting), such meeting shall be held at such place, date
and time as may be designated by the Board of Trustees; provided, however, that the date of
any Shareholder Requested Meeting shall be not more than 90 days after the record date for such
meeting (the Meeting Record Date); and provided further that if the Board of
Trustees fails to designate, within ten days after the date that a valid Special Meeting Request is
actually received by the Secretary (the Delivery Date), a date and time for a Shareholder
Requested Meeting, then such meeting shall be held at 2:00 p.m. local time on the 90th day after
the Meeting
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Record Date or, if such 90th day is not a Business Day (as defined below), on the first
preceding Business Day; and provided further that in the event that the Board of
Trustees fails to designate a place for a Shareholder Requested Meeting within ten days after the
Delivery Date, then such meeting shall be held at the principal executive office of the Company.
In fixing a date for any special meeting, the Chairman of the Board, the Chief Executive Officer,
the President or the Board of Trustees may consider such factors as he, she or it deems relevant
within the good faith exercise of business judgment, including, without limitation, the nature of
the matters to be considered, the facts and circumstances surrounding any request for a meeting and
any plan of the Board of Trustees to call an annual meeting or a special meeting. In the case of
any Shareholder Requested Meeting, if the Board of Trustees fails to fix a Meeting Record Date that
is a date within 30 days after the Delivery Date, then the close of business on the 30th day after
the Delivery Date shall be the Meeting Record Date. The Board of Trustees may revoke the notice
for any Shareholder Requested Meeting in the event that the requesting shareholders fail to comply
with the provisions of paragraph (3) of this Section 3(b).
(5) If written revocations of the Special Meeting Request have been delivered to the
Secretary and the result is that shareholders of record (or their agents duly authorized in
writing), as of the Request Record Date entitled to cast less than the Special Meeting Percentage
have delivered and not revoked requests for a special meeting to the Secretary: (i) if the notice
of meeting has not already been delivered, the Secretary shall refrain from delivering the notice
of the meeting and send to all requesting shareholders who have not revoked such requests written
notice of any revocation of a request for the special meeting, or (ii) if the notice of the meeting
has been delivered and if the Secretary first sends to all requesting shareholders who have not
revoked requests for a special meeting on a matter written notice of any revocation of a request
for the special meeting and written notice of the Companys intention to revoke the notice of the
meeting or for the chairman of the meeting to adjourn the meeting without action on the matter, (A)
the Secretary may revoke the notice of the meeting at any time before the commencement of the
meeting or (B) the chairman of the meeting may all the meeting to order and adjourn the meeting
without action on the matter. Any request for a special meeting received after a revocation by the
Secretary of a notice of a meeting shall be considered a request for a new special meeting.
(6) The Chairman of the Board, the Chief Executive Officer, the President or the Board of
Trustees may appoint regionally or nationally recognized independent inspectors of elections to act
as the agent of the Company for the purpose of promptly performing a ministerial review of the
validity of any purported Special Meeting Request received by the Secretary. For the purpose of
permitting the inspectors to perform such review, no such purported Special Meeting Request shall
be deemed to have been delivered to the Secretary until the earlier of (i) five Business Days after
receipt by the Secretary of such purported request and (ii) such date as the independent inspectors
certify to the Company that the valid requests received by the Secretary represent, as of the
Request Record Date, shareholders of record entitled to cast not less than the Special Meeting
Percentage. Nothing contained in this paragraph (6) shall in any way be construed to suggest or
imply that the Company or any shareholder shall not be entitled to contest the validity of any
request, whether during or after such five Business Day period, or to take any other action
(including, without limitation, the commencement, prosecution or defense of any litigation with
respect thereto, and the seeking of injunctive relief in such litigation).
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(7) For purposes of these Bylaws, Business Day shall mean any day other than a Saturday,
a Sunday or a day on which banking institutions in the State of Illinois are authorized or
obligated by law or executive order to close.
Section 4. NOTICE. Not less than ten nor more than 90 days before each meeting of
shareholders, the Secretary shall give to each shareholder entitled to vote at such meeting and to
each shareholder not entitled to vote who is entitled to notice of the meeting notice in writing or
by electronic transmission stating the time and place of the meeting and, in the case of a special
meeting or as otherwise may be required by any statute, the purpose for which the meeting is
called, by mail, electronic mail or other electronic means, or by presenting it to such shareholder
personally or by leaving it at the shareholders residence or usual place of business or by any
other means permitted by Maryland law. If mailed, such notice shall be deemed to be given when
deposited in the United States mail addressed to the shareholder at the shareholders address as it
appears on the records of the Company, with postage thereon prepaid. If transmitted
electronically, such notice shall be deemed to be given when transmitted to the shareholder by an
electronic transmission to any address or number of the shareholder at which the shareholder
receives electronic transmissions. A single notice to all shareholders who share an address shall
be effective as to any shareholder at such address who consents to such notice or after having been
notified of the Companys intent to give a single notice fails to object in writing to such single
notice within 60 days. Failure to give notice of any meeting to one or more shareholders, or any
irregularity in such notice, shall not affect the validity of any meeting fixed in accordance with
this Article II, or the validity of any proceedings at any such meeting.
Subject to Section 13(a) of this Article II, any business of the Company may be transacted at
an annual meeting of shareholders without being specifically designated in the notice, except such
business as is required by any statute to be stated in such notice. No business shall be
transacted at a special meeting of shareholders except as specifically designated in the notice.
The Company may postpone or cancel a meeting of shareholders by making a public announcement (as
defined in Section 13(c)(3)) of such postponement or cancellation prior to the meeting. Notice of
the date to which the meeting is postponed shall be given not less than ten days prior to such date
and otherwise in the manner set forth in this Section 4.
Section 5. ORGANIZATION AND CONDUCT. Every meeting of shareholders shall be
conducted by an individual appointed by the Board of Trustees to be chairman of the meeting or, in
the absence of such appointment, by the Chairman of the Board or, in the case of a vacancy in the
office or absence of the Chairman of the Board, by one of the following officers present at the
meeting: the Vice Chairman of the Board, if there is one, the Chief Executive Officer, the
President, the Vice Presidents in their order of rank and seniority, or, in the absence of such
officers, a chairman chosen by the shareholders by the vote of a majority of the votes cast by
shareholders present in person or by proxy. The Secretary or, in the Secretarys absence, an
Assistant Secretary, or in the absence of both the Secretary and Assistant Secretaries, an
individual appointed by the Board of Trustees, or in the absence of such appointment, an individual
appointed by the chairman of the meeting, shall act as Secretary. In the event that the Secretary
presides at a meeting of the shareholders, an Assistant Secretary, or in the absence of Assistant
Secretaries, an individual appointed by the Board of Trustees or the chairman of the meeting, shall
record the minutes of the meeting. The order of business and all other matters of procedure at any
meeting of shareholders shall be determined by the chairman of the meeting. The chairman of the
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meeting may prescribe such rules, regulations and procedures and take such action as, in the
discretion of such chairman, are appropriate for the proper conduct of the meeting, including,
without limitation, (a) restricting admission to the time set for the commencement of the meeting;
(b) limiting attendance at the meeting to shareholders of record of the Company, their duly
authorized proxies and other such individuals as the chairman of the meeting may determine; (c)
limiting participation at the meeting on any matter to shareholders of record of the Company
entitled to vote on such matter, their duly authorized proxies and other such individuals as the
chairman of the meeting may determine; (d) limiting the time allotted to questions or comments by
participants; (e) determining when the polls should be opened and closed; (f) maintaining order and
security at the meeting; (g) removing any shareholder or any other individual who refuses to comply
with meeting procedures, rules or guidelines as set forth by the chairman of the meeting; (h)
concluding a meeting or recessing or adjourning the meeting to a later date and time and place
announced at the meeting; and (i) complying with any state and local laws and regulations
concerning safety and security. Unless otherwise determined by the chairman of the meeting,
meetings of shareholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
Section 6. QUORUM. At any meeting of shareholders, the presence in person or by
proxy of shareholders entitled to cast a majority of all the votes entitled to be cast at such
meeting on any matter shall constitute a quorum; but this section shall not affect any requirement
under any statute or the Declaration of Trust of the Company (the Declaration of Trust) for the
vote necessary for the adoption of any measure. If, however, such quorum shall not be present at
any meeting of the shareholders, the chairman of the meeting may adjourn the meeting from time to
time to a date not more than 120 days after the original record date without notice other than
announcement at the meeting. At such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting as originally notified.
The shareholders present either in person or by proxy, at a meeting which has been duly called
and at which a quorum was established, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a quorum.
Section 7. VOTING.
(a) Uncontested Trustee Elections. Except as otherwise provided in this Section
7, each Trustee shall be elected by a majority of votes cast at a meeting of shareholders duly
called and at which a quorum is present. For purposes of the preceding sentence, a majority of
votes cast shall mean that the number of shares voted for a Trustees election exceeds fifty
percent (50%) of the total number of votes cast with respect to that Trustees election. Votes
cast shall mean votes for and affirmative votes to withhold authority to vote for a nominee but
shall exclude an abstention with respect to a Trustees election or with respect to the election of
Trustees generally. Each share may be voted for as many individuals as there are Trustees to be
elected and for whose election the share is entitled to be voted.
(b) Contested Trustee Elections. Notwithstanding the foregoing, if, as of a date
that is fourteen (14) days in advance of the date the Company files its definitive proxy statement
with the Securities and Exchange Commission (regardless of whether or not the proxy statement
thereafter is revised or supplemented) (the Advance Notice Date), the number of nominees
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exceeds the number of trusteeships, then each Trustee shall be elected by a plurality of votes
cast at a meeting of shareholders duly called and at which a quorum is present. For purposes of
the preceding sentence, there are more nominees than trusteeships if (i) the Secretary of the
Company receives notice that a shareholder has nominated an individual for election as a Trustee in
compliance with the requirements of advance notice of shareholder nominees for Trustees set forth
in Article II, Section 13 of these Bylaws, and (ii) such nomination has not been withdrawn by such
shareholder on or prior to the Advance Notice Date. Each share may be voted for as many
individuals as there are Trustees to be elected and for whose election the share is entitled to be
voted.
(c) Generally. A majority of the votes cast at a meeting of shareholders duly
called and at which a quorum is present shall be sufficient to approve any other matter which may
properly come before the meeting, unless more than a majority of the votes cast is
required by statute or by the Declaration of Trust. Unless otherwise provided by statute or by the
Declaration of Trust, each outstanding share of beneficial interest, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of shareholders. Voting on
any question or in any election may be viva voce unless the chairman of the meeting shall order
that voting be by ballot.
(d) Trustee Resignation for Failure to Receive Requisite Vote. Any nominee for
Trustee not elected by the vote required in this Section 7 and who is an incumbent Trustee shall
promptly tender his or her resignation to the Board for consideration. The Corporate Governance
Committee will make a recommendation to the Board as to whether to accept or reject the tendered
resignation, or whether other action is recommended, taking into account any factors or other
information that they consider appropriate and relevant, including the circumstances that led to
the failure to receive the required vote, if known. The Board will act on the tendered resignation
within ninety (90) days following certification of the shareholder vote and will promptly disclose
its decision and rationale as to whether to accept the resignation (or the reasons for rejecting
the resignation, if applicable) in a press release, filing with the Securities and Exchange
Commission or by other public announcement, including a posting on the Companys web site. No
Trustee who tenders his or her resignation pursuant to this Section shall participate in the
Corporate Governance Committee recommendation or Board action with respect to his or her
resignation. Notwithstanding the foregoing, in the event that no nominee for Trustee receives the
vote required in these Bylaws, the Corporate Governance Committee shall make a final determination
as to whether the Company shall accept any or all resignations, including those resignations from
the members of the Corporate Governance Committee. If an incumbent Trustees resignation is
accepted by the Board pursuant to this Section 7, or if a non-incumbent nominee for Trustee is not
elected, the Board may fill the resulting vacancy or decrease the size of the Board pursuant to
Section 11 of this Article III. If an incumbent Trustees resignation is not accepted by the Board
pursuant to this Section 7, such Trustee shall continue to serve on the Board until the next annual
meeting of shareholders and until his or her successor is elected and qualified.
Section 8. PROXIES. A shareholder may cast the votes entitled to be cast by the
holder of shares of beneficial interest owned of record by the shareholder either in person or by
proxy executed or authorized by the shareholder or by the shareholders duly authorized agent in
any manner permitted by law. Such proxy or evidence of authorization of such proxy shall be
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filed with the Secretary before or at the meeting. No proxy shall be valid more than eleven months
after its date unless otherwise provided in the proxy.
Section 9. VOTING OF SHARES BY CERTAIN HOLDERS. Shares of the Company registered
in the name of a corporation, partnership, limited liability company, trust or other entity, if
entitled to be voted, may be voted by the president or a vice president, a general partner, member,
manager or trustee thereof, as the case may be, or a proxy appointed by any of the foregoing
individuals, unless some other person who has been appointed to vote such shares pursuant to a
bylaw or a resolution of the governing body of such corporation or other entity or agreement of the
partners of the partnership presents a certified copy of such bylaw, resolution or agreement, in
which case such person may vote such shares. Any trustee or other fiduciary may vote shares
registered in his or her name as such fiduciary, either in person or by proxy.
Shares of the Company directly or indirectly owned by it shall not be voted at any meeting and
shall not be counted in determining the total number of outstanding shares entitled to be voted at
any given time, unless they are held by it in a fiduciary capacity, in which case they may be voted
and shall be counted in determining the total number of outstanding shares at any given time.
The Board of Trustees may adopt by resolution a procedure by which a shareholder may certify
in writing to the Company that any shares registered in the name of the shareholder are held for
the account of a specified person other than the shareholder. The resolution shall set forth the
class of shareholders who may make the certification, the purpose for which the certification may
be made, the form of certification and the information to be contained in it; if the certification
is with respect to a record date or closing of the share transfer books, the time after the record
date or closing of the share transfer books within which the certification must be received by the
Company; and any other provisions with respect to the procedure which the Board of Trustees
considers necessary or desirable. On receipt of such certification, the person specified in the
certification shall be regarded as, for the purposes set forth in the certification, the
shareholder of record of the specified shares in place of the shareholder who makes the
certification.
Section 10. CONTROL SHARE ACQUISITION ACT. Notwithstanding any other provision
contained herein or in the Declaration of Trust or these Bylaws, Title 3, Subtitle 7 of the
Maryland General Corporation Law (the MGCL) (or any successor statute) shall not apply to any
acquisition by any person of shares of beneficial interest of the Company. This section may be
repealed, in whole or in part, at any time, whether before or after an acquisition of control
shares and, upon such repeal, may, to the extent provided by any successor bylaw, apply to any
prior or subsequent control share acquisition.
Section 11. INSPECTORS. The Board of Trustees or the chair of the meeting may
appoint, before or at the meeting, one or more inspectors for the meeting and any successor
thereto. The inspectors, if any, shall (i) determine the number of shares of beneficial interest
represented at the meeting in person or by proxy and the validity and effect of proxies, (ii)
receive and tabulate all votes, ballots or consents, (iii) report such tabulation to the chair of
the meeting, (iv) hear and determine all challenges and questions arising in connection with the
right to vote, and (v) do such acts as are proper to conduct the election or vote with fairness to
all shareholders. Each such report shall be in writing and signed by him or her or by a majority
of them if there is
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more than one inspector acting at such meeting. If there is more than one inspector, the
report of a majority shall be the report of the inspectors. The report of the inspector or
inspectors on the number of shares represented at the meeting and the results of the voting shall
be prima facie evidence thereof.
Section 12. REPORTS TO SHAREHOLDERS. The President or some other executive
officer designated by the Board of Trustees shall prepare annually a full and correct statement of
the affairs of the Company, which shall include a balance sheet and a financial statement of
operations for the preceding fiscal year and such further information as the Trustees may determine
is required pursuant to any law or regulation to which the Company is subject. The statement of
affairs shall be submitted at the annual meeting of the shareholders and, within 20 days after the
annual meeting of shareholders, placed on file at the principal office of the Company.
Section 13. NOMINATIONS AND PROPOSALS BY SHAREHOLDERS.
(a) Annual Meetings of Shareholders. (1) Nominations of individuals for election
to the Board of Trustees and the proposal of other business to be considered by the shareholders
may be made at an annual meeting of shareholders (i) pursuant to the Companys notice of meeting,
(ii) by or at the direction of the Board of Trustees or (iii) by any shareholder of the Company who
was a shareholder of record both at the time of giving of notice by the shareholder as provided for
in this Section 13(a) and at the time of the annual meeting, who is entitled to vote at the meeting
in the election of trustees or on the proposal of other business, as the case may be, and who has
complied with this Section 13(a).
(2) For nominations or other business to be properly brought before an annual meeting by a
shareholder pursuant to clause (iii) of paragraph (a) (1) of this Section 13, the shareholder must
have given timely notice thereof in writing to the Secretary of the Company and such other business
must otherwise be a proper matter for action by shareholders. To be timely, a shareholders notice
shall set forth all information required under this Section 13 and shall be delivered to the
Secretary at the principal executive offices of the Company not earlier than the 150th day nor
later than 5:00 p.m., Central Time, on the 120th day prior to the first anniversary of the date of
the proxy statement for the preceding years annual meeting; provided, however, that in the event
that the date of the annual meeting is advanced or delayed by more than 30 days from the first
anniversary of the date of preceding years annual meeting, notice by the shareholder to be timely
must be so delivered not earlier than the 150th day prior to the date of such annual meeting and
not later than 5:00 p.m., Central Time, on the later of the 120th day prior to the date of such
annual meeting or the tenth day following the day on which public announcement of the date of such
meeting is first made. The public announcement of a postponement or adjournment of an annual
meeting to a later date or time commence a new time period for the giving of a shareholders notice
as described above.
(3) Such shareholders notice shall set forth:
(i) as to each individual whom the shareholder proposes to nominate for election or reelection
as a Trustee (each, a Proposed Nominee), all information relating to the Proposed Nominee that
would be required to be disclosed in connection with the solicitation of
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proxies for the election of the Proposed Nominee as a Trustee in an election contest (even if an
election contest is not involved), or would otherwise be required in connection with such
solicitation, in each case pursuant to Regulation 14A (or any successor provision) under the
Exchange Act and the rules thereunder (including the Proposed Nominees written consent to being
named in the proxy statement as a nominee and to serving as a Trustee if elected);
(ii) as to any business that the shareholder proposes to bring before the meeting, a
description of such business, the shareholders reasons for proposing such business at the meeting
and any material interest in such business of such shareholder or any Shareholder Associated Person
(as defined below), individually or in the aggregate, including any anticipated benefit to the
shareholder and the Shareholder Associated Person therefrom;
(iii) as to the shareholder giving the notice, any Proposed Nominee and any Shareholder
Associated Person:
(A) the class, series and number of all shares of beneficial interest or other securities
of the Company or any affiliate thereof (collectively, the Company Securities), if any, which are
owned (beneficially or of record) by such shareholder, Proposed Nominee or Shareholder Associated
Person, the date on which each such Company Security was acquired and the investment intent of such
acquisition, and any short interest (including any opportunity to profit or share in any benefit
from any decrease in the price of such shares or other security) in any Company Securities of any
such person,
(B) the nominee holder for, and number of any Company Securities owned beneficially but
not of record by such shareholder, Proposed Nominee or and by Shareholder Associated Person;
(C) whether and the extent to which such shareholder, Proposed Nominee or Shareholder
Associated Person, directly or indirectly (through brokers, nominees or otherwise), is subject to
or during the last six months has engaged in any hedging, derivative or other transaction or series
of transactions or entered into any other agreement, arrangement or understanding (including any
short interest, any borrowing or lending of securities or any proxy or voting agreement), the
effect or intent of which is to (I) manage risk or benefit of changes in the price of Company
Securities or (II) to increase or decrease the voting power of such shareholder, Proposed Nominee
or Shareholder Associated Person in the Company or any affiliate thereof disproportionately to such
persons economic interest therein; in the Company Securities;
(iv) as to the shareholder giving the notice, any Shareholder Associated Person with an
interest or ownership referred to in clauses (ii) or (iii) of this paragraph (3) of this Section
13(a) and any Proposed Nominee:
(A) the name and address of such shareholder, as they appear on the Companys share
ledger, and the current name, business address, if different, of each such Shareholder Associated
Person and any Proposed Nominee and
(B) the investment strategy or objective, if any, of such shareholder and each such
Shareholder Associated Person who is not an individual and a copy of the prospectus, offering
memorandum or similar document, if any, provided to investors or
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potential investors in such shareholder, each such Shareholder Associated Person and any Proposed
Nominee; and
(v) to the extent known by the shareholder giving the notice, the name and address of any
other shareholder supporting the nominee for election or reelection as a Trustee or the proposal of
other business on the date of such shareholders notice.
(4) Notwithstanding the foregoing provisions of this Section 13, a shareholder shall also
comply with all applicable requirements of state law and of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section 13. Nothing in this
Section 13 shall be deemed to affect any rights of shareholders to request inclusion of a proposal
in, nor the right of the Company to omit a proposal from, the Companys proxy statement pursuant to
Rule 14a-8 (or any successor provision) under the Exchange Act. Nothing in this Section 13 shall
be deemed to affect any rights of shareholders to request inclusion of a nomination of an
individual for election as a trustee in, nor the right of the Company to omit a nomination from,
the Companys proxy statement pursuant to Rule 14a-11 (or any successor provision) under the
Exchange Act. Nothing in this Section 13 shall require disclosure of revocable proxies received by
the shareholder or Shareholder Associated Person pursuant to a solicitation of proxies after the
filing of an effective Schedule 14A under Section 14(a) of the Exchange Act.
(5) Notwithstanding anything in this subsection (a)(2) of this Section 13 to the contrary,
in the event that the number of Trustees to be elected to the Board of Trustees is increased and
there is no public announcement of such action at least 130 days prior to the first anniversary of
the date of the proxy statement for the preceding years annual meeting, a shareholders notice
required by this Section 13(a) shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to the Secretary at the
principal executive office of the Company not later than 5:00 p.m., Central Time, on the tenth day
following the day on which such public announcement is first made by the Company.
(6) For purposes of this Section 13, Shareholder Associated Person of any shareholder
means (i) any person acting in concert with such shareholder, (ii) any beneficial owner of shares
of beneficial interest of the Company owned of record or beneficially by such shareholder (other
than a shareholder that is a depositary) and (iii) any person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common control with, such
shareholder or such Shareholder Associated Person.
(b) Special Meetings of Shareholders. Only such business shall be conducted at a
special meeting of shareholders as shall have been brought before the meeting pursuant to the
Companys notice of meeting. Nominations of individuals for election to the Board of Trustees may
be made at a special meeting of shareholders at which Trustees are to be elected only (i) by or at
the direction of the Board of Trustees or (ii) provided that the special meeting has been called in
accordance with Section 3 of this Article II for the purpose of electing Trustees, by any
shareholder of the Company who is a shareholder of record both at the time of giving of notice
provided for in this Section 13(b) and at the time of the special meeting, who is entitled to vote
at the meeting in the election of any individual so nominated and who has complied with the notice
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procedures set forth in this Section 13(b). In the event that the purpose of any special
meeting of shareholders shall be to elect one or more Trustees to the Board of Trustees, any such
shareholder may nominate an individual or individuals (as the case may be) for election as a
Trustee if the shareholders notice containing the information required by subsection (a) (3) of
this Section 13 shall be delivered to the Secretary at the principal executive office of the
Company not earlier than the 120th day prior to such special meeting and not later than 5:00 p.m.,
Central Time, on the later of the 90th day prior to such special meeting or the tenth day following
the day on which public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Trustees to be elected at such meeting. In no event shall the
public announcement of a postponement or adjournment of a special meeting to a later date or time
commence a new time period for the giving of a shareholders notice as described above.
(c) General. (1) If information submitted pursuant to this Section 13 by any
shareholder proposing a nominee for election as a Trustee or any proposal for other business at a
meeting of shareholders shall be inaccurate in any material respect, such information may be deemed
not to have been provided in accordance with this Section 13. Any such shareholder shall notify
the Company of any inaccuracy or change (within two Business Days of becoming aware of such
inaccuracy or change) in any such information. Upon written request by the Secretary or the Board
of Trustees or any committee thereof, any such shareholder shall provide, within five Business Days
of delivery of such request (or such other period as may be specified in such request), (A) written
verification, satisfactory, in the discretion of the Board or any committee thereof or any
authorized officer of the Company, of the accuracy of any information submitted by the shareholder
pursuant to this Section 13, and (B) a written update of any information submitted by the
shareholder pursuant to this Section 13 as of an earlier date. If a shareholder fails to provide
such written verification or written update within such period, the information as to which written
verification or written update was requested may be deemed as not having been provided in
accordance with this Section 13.
(2) Only such individuals who are nominated in accordance with this Section 13 shall be
eligible for election by shareholders as Trustees and only such business shall be conducted at a
meeting of shareholders as shall have been brought before the meeting in accordance with the
procedures set forth in this Section 13. The chairman of the meeting shall have the power to
determine whether a nomination or any other business proposed to be brought before the meeting was
made or proposed, as the case may be, in accordance with this Section 13 and, if any proposed
nomination or business is not in compliance with this Section 13.
(3) Public announcement shall mean disclosure in (i) a press release reported by the Dow
Jones News Service, Associated Press, Business Wire, PR Newswire or other widely circulated news or
wire service or (ii) a document publicly filed by the Company with the Securities and Exchange
Commission pursuant to the Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section 13, a shareholder shall also
comply with all applicable requirements of state law and of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section 13. Nothing in this
Section 13 shall be deemed to affect any rights of shareholders to request inclusion of a proposal
in, nor the right of the Company to omit a proposal from, the Companys proxy statement pursuant to
Rule 14a-8 (or any successor provision) under the Exchange Act. Nothing
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in this Section 13 shall require disclosure of revocable proxies received by the shareholder
or Shareholder Associated Person pursuant to a solicitation of proxies after the filing of an
effective Schedule 14A under Section 14(a) of the Exchange Act.
Section 14. MEETING BY CONFERENCE TELEPHONE. The Board of Trustees or the
chairman of the meeting may permit shareholders to participate in a meeting of shareholders by
means of conference telephone or other communications equipment by which all persons participating
in the meeting can hear each other at the same time. Participation in a meeting by these means
constitutes presence in person at the meeting.
Section 15. WRITTEN CONSENT BY SHAREHOLDERS. Any action required or permitted to
be taken at a meeting of shareholders may be taken without a meeting (a) if a unanimous consent
setting forth the action is given in writing or by electronic transmission by each shareholder
entitled to vote on the matter and any other shareholder entitled to notice of a meeting of
shareholders (but not to vote thereat) has waived in writing or by electronic transmission any
right to dissent from such action, and such consent and waiver are filed with the minutes of
proceedings of the shareholders or (b) if the action is advised, and submitted to the shareholders
for approval, by the Board of Trustees and a consent in writing or by electronic transmission of
shareholders entitled to cast not less than the minimum number of votes that would be necessary to
authorize or take the action at a meeting of shareholders as required by statute, the Declaration
of Trust or these Bylaws is delivered to the Company. The Company shall give notice of any action
taken by less than unanimous consent to each shareholder not later than ten days after the
effective time of such action.
ARTICLE III
TRUSTEES
Section 1. GENERAL POWERS, QUALIFICATIONS, TRUSTEES HOLDING OVER. The business
and affairs of the Company shall be managed under the direction of its Board of Trustees. A
Trustee shall be an individual at least 21 years of age who is not under legal disability. In case
of failure to elect Trustees at an annual meeting of the shareholders, the Trustees holding over
shall continue to direct the management of the business and affairs of the Company until their
successors are elected and qualify.
Section 2. NUMBER. At any regular meeting or at any special meeting called for
that purpose, a majority of the entire Board of Trustees may establish, increase or decrease the
number of Trustees; provided, however, that the number thereof shall never be less than two
nor more than 15, and further provided that such action shall not affect the tenure of office of
any Trustee.
Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board of
Trustees shall be held at least once per calendar year, no notice other than this Bylaw being
necessary. In the event such meeting is not so held, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for special meetings of the
Board of Trustees. The Board of Trustees may provide, by resolution, the time and place for the
holding of regular meetings of the Board of Trustees without other notice than such resolution.
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Section 4. SPECIAL MEETINGS. Special meetings of the Board of Trustees may be
called by or at the request of the Chairman of the Board, the Chief Executive Officer, the
President or by a majority of the Trustees then in office. The person or persons authorized to
call special meetings of the Board of Trustees may fix any place as the place for holding any
special meeting of the Board of Trustees called by them. The Board of Trustees may provide, by
resolution, the time and place for the holding of special meetings of the Board of Trustees without
other notice than such resolution.
Section 5. NOTICE. Notice of any special meeting of the Board of Trustees shall
be delivered personally or by telephone, electronic mail, facsimile transmission, courier or United
States mail to each Trustee at his or her business or residence address. Notice by personal
delivery, telephone, electronic mail or facsimile transmission shall be given at least 24 hours
prior to the meeting. Notice by United States mail shall be given at least three days prior to the
meeting. Notice by courier shall be given at least two days prior to the meeting. Telephone
notice shall be deemed to be given when the Trustee or his or her agent is personally given such
notice in a telephone call to which the Trustee or his or her agent is a party. Electronic mail
notice shall be deemed to be given upon transmission of the message to the electronic mail address
given to the Company by the Trustee. Facsimile transmission notice shall be deemed to be given
upon completion of the transmission of the message to the number given to the Company by the
Trustee and receipt of a completed confirmation indicating receipt. Notice by United States mail
shall be deemed to be given when deposited in the United States mail properly addressed, with
postage thereon prepaid. Notice by courier shall be deemed to be given when deposited with or
delivered to a courier properly addressed. Neither the business to be transacted at, nor the
purpose of, any annual, regular or special meeting of the Board of Trustees need be stated in the
notice, unless specifically required by statute or these Bylaws.
Section 6. QUORUM. A majority of the Trustees shall constitute a quorum for
transaction of business at any meeting of the Board of Trustees, provided that, if less than a
majority of such Trustees is present at such meeting, a majority of the Trustees present may
adjourn the meeting from time to time without further notice, and provided further that if,
pursuant to applicable law, the Declaration of Trust or these Bylaws, the vote of a majority or
other percentage of a particular group of Trustees is required for action, a quorum must also
include a majority of such group.
The Trustees present at a meeting which has been duly called and at which a quorum was
established may continue to transact business until adjournment, notwithstanding the withdrawal of
enough Trustees to leave less than a quorum.
Section 7. VOTING. The action of a majority of the Trustees present at a meeting
at which a quorum is present shall be the action of the Board of Trustees, unless the concurrence
of a greater proportion is required for such action by applicable law, the Declaration of Trust or
these Bylaws. If enough Trustees have withdrawn from a meeting to leave less than a quorum but the
meeting is not adjourned, the action of the majority of that number of Trustees necessary to
constitute a quorum at such meeting shall be the action of the Board of Trustees, unless the
concurrence of a greater proportion is required for such action by applicable law, the Declaration
of Trust or these Bylaws.
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Section 8. ORGANIZATION. At each meeting of the Board of Trustees, the Chairman
of the Board or, in the absence of the Chairman, the Vice Chairman of the Board, if any, shall act
as chairman of the meeting. In the absence of both the Chairman and Vice Chairman of the Board,
the Chief Executive Officer or in the absence of the Chief Executive Officer, the President or in
the absence of the President, a Trustee chosen by a majority of the Trustees present, shall act as
chairman of the meeting. The Secretary or, in his or her absence, an Assistant Secretary, or in
the absence of the Secretary and all Assistant Secretaries, an individual appointed by the chairman
of the meeting, shall act as Secretary of the meeting.
Section 9. TELEPHONE MEETINGS. Trustees may participate in a meeting by means of
a conference telephone or other communications equipment if all persons participating in the
meeting can hear each other at the same time. Participation in a meeting by these means shall
constitute presence in person at the meeting.
Section 10. CONSENT BY TRUSTEES WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of the Board of Trustees may be taken without a meeting, if a
consent in writing or by electronic transmission to such action is given by each Trustee and is
filed with the minutes of proceedings of the Board of Trustees.
Section 11. VACANCIES. If for any reason any or all the Trustees cease to be
Trustees, such event shall not terminate the Company or affect these Bylaws or the powers of the
remaining Trustees hereunder. Any vacancy on the Board of Trustees for any cause other than an
increase in the number of Trustees may be filled by a majority of the remaining Trustees, even if
such majority is less than a quorum. Any vacancy in the number of Trustees created by an increase
in the number of Trustees may be filled by a majority vote of the entire Board of Trustees. Any
individual so elected a Trustee shall hold office until the next annual meeting of shareholders and
until his or her successor is elected and qualifies.
Section 12. COMPENSATION. Trustees shall not receive any stated salary for their
services as Trustees but, by resolution of the Board of Trustees, may receive compensation per year
and/or per meeting and/or per visit to real property or other facilities owned, leased or to be
acquired or leased by the Company and for any service or activity they performed or engaged in as
Trustees. Trustees may be reimbursed for expenses of attendance, if any, at each annual, regular
or special meeting of the Board of Trustees or of any committee thereof; and for their expenses, if
any, in connection with each property visit and any other service or activity they performed or
engaged in as Trustees; but nothing herein contained shall be construed to preclude any Trustees
from serving the Company in any other capacity and receiving compensation therefor.
Section 13. RELIANCE. Each Trustee and officer of the Company shall, in the
performance of his or her duties with respect to the Company, be entitled to rely on any
information, opinion, report or statement, including any financial statement or other financial
data, prepared or presented by an officer or employee of the Company whom the Trustee or officer
reasonably believes to be reliable and competent in the matters presented, by a lawyer, certified
public accountant or other person, as to a matter which the Trustee or officer reasonably believes
to be within the persons professional or expert competence, or, with respect to a Trustee, by a
committee of the Board of Trustees on which the Trustee does not serve, as to a matter within its
designated authority, if the Trustee reasonably believes the committee to merit confidence.
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Section 14. INTERESTED TRUSTEE TRANSACTIONS. Section 2-419 of the MGCL shall be
available for and apply to any contract or other transaction between the Company and any of its
Trustees or between the Company and any other trust, corporation, firm or other entity in which any
of its Trustees is a trustee or director or has a material financial interest.
Section 15. RESIGNATION AND REMOVAL OF TRUSTEES. The shareholders may, at any
time, remove any Trustee in the manner provided in the Declaration of Trust. Any Trustee of the
Company may resign at any time by giving written notice of his or her resignation to the Board of
Trustees. Any resignation shall take effect immediately upon its receipt or at such later time
specified in the notice of resignation. The acceptance of a resignation shall not be necessary to
make it effective unless otherwise stated in the resignation. Such resignation shall be without
prejudice to the contract rights, if any, of the Company
Section 16. RATIFICATION. The Board of Trustees or the shareholders may ratify
and make binding on the Company any action or inaction by the Company or its officers to the extent
that the Board of Trustees or the shareholders could have originally authorized the matter.
Moreover, any action or inaction questioned in any shareholders derivative proceeding or any other
proceeding on the ground of lack of authority, defective or irregular execution, adverse interest
of a trustee, officer or shareholder, non-disclosure, miscomputation, the application of improper
principles or practices of accounting, or otherwise, may be ratified, before or after judgment, by
the Board of Trustees or by the shareholders, and if so ratified, shall have the same force and
effect as if the questioned action or inaction had been originally duly authorized, and such
ratification shall be binding upon the Company and its shareholders and shall constitute a bar to
any claim or execution of any judgment in respect of such questioned action or inaction.
Section 17. CERTAIN RIGHTS OF TRUSTEES AND OFFICERS. A Trustee who is not also an
officer of the Company shall have no responsibility to devote his or her full time to the affairs
of the Company. Any Trustee or officer, in his or her personal capacity or in a capacity as an
affiliate, employee, or agent of any other person, or otherwise, may have business interests and
engage in business activities similar to or in addition to those of or relating to the Company.
Section 18. EMERGENCY PROVISIONS. Notwithstanding any other provision in the
Declaration of Trust or these Bylaws, this Section 18 shall apply during the existence of any
catastrophe, or other similar emergency condition, as a result of which a quorum of the Board of
Trustees under Article III of these Bylaws cannot readily be obtained (an Emergency). During any
Emergency, unless otherwise provided by the Board of Trustees, (i) a meeting of the Board of
Trustees or a committee thereof may be called by any Trustee or officer by any means feasible under
the circumstances; (ii) notice of any meeting of the Board of Trustees during such an Emergency may
be given less than 24 hours prior to the meeting to as many Trustees and by such means as it may be
feasible at the time, including publication, television or radio, and (iii) the number of Trustees
necessary to constitute a quorum shall be one-third of the entire Board of Trustees.
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ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Trustees may appoint
from among its members an Executive Committee, an Audit Committee, a Compensation Committee, a
Nominating Committee, a Corporate Governance Committee and other committees, composed of one or
more Trustees, to serve at the pleasure of the Board of Trustees.
Section 2. POWERS. The Board of Trustees may delegate to committees appointed
under Section 1 of this Article any of the powers of the Board of Trustees.
Section 3. MEETINGS. In the absence of any member of any such committee, the
members thereof present at any meeting, whether or not they constitute a quorum, may appoint
another Trustee to act in the place of such absent member. Notice of committee meetings shall be
given in the same manner as notice for special meetings of the Board of Trustees.
A majority of the members of any committee shall constitute a quorum for the transaction of
business at any meeting of the committee and the act of a majority of the committee members present
at a meeting shall be the act of such committee. The Board of Trustees may designate a Chairman of
any committee, and such Chairman or, in the absence of such a Chairman, any two members of any
committee (if there are at least two members of the committee), may fix the time and place of its
meetings unless the Board shall otherwise provide. In the absence of any member of any such
committee, the members thereof present at any meeting, whether or not they constitute a quorum, may
appoint another Trustee to act at the meeting in the place of such absent members. Each committee
shall keep minutes of its proceedings.
Section 4. TELEPHONE MEETINGS. Members of a committee of the Board of Trustees
may participate in a meeting by means of a conference telephone or other communications equipment
if all persons participating in the meeting can hear each other at the same time. Participation in
a meeting by these means shall constitute presence in person at the meeting.
Section 5. CONSENT BY COMMITTEES WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of a committee of the Board of Trustees may be taken without a
meeting, if a consent in writing or by electronic transmission to such action is given by each
member of the committee and is filed with the minutes of proceedings of such committee.
Section 6. VACANCIES. Subject to the provisions hereof, the Board of Trustees
shall have the power at any time to change the membership of any committee, to fill any vacancy, to
designate an alternate member to replace any absent or disqualified member or to dissolve any such
committee.
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ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Company shall include a
President, a Secretary and a Treasurer and may include a Chairman of the Board, a Vice Chairman of
the Board, a Chief Executive Officer, a Chief Operating Officer, a Chief Financial Officer, one or
more Vice Presidents, one or more Assistant Secretaries and one or more Assistant Treasurers. In
addition, the Board of Trustees may from time to time elect such other officers with such powers
and duties as it shall deem necessary or desirable. The Chief Executive Officer may from time to
time appoint one or more Senior Vice Presidents or other officers below the level of Executive Vice
President. Each officer shall serve until the officers successor is elected and qualifies or
until his or her death, resignation or removal in the manner hereinafter provided. Any two or more
offices except President and Vice President may be held by the same individual. Election of an
officer or agent shall not of itself create contract rights between the Company and such officer or
agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the Company may be
removed by the Board of Trustees, with or without cause, if in its judgment the best interests of
the Company would be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Any officer of the Company may resign at any time by
delivering his or her resignation to the Board of Trustees, the Chairman of the Board, the
President or the Secretary. Any resignation shall take effect at any time subsequent to the time
specified therein or, if the time when it shall become effective is not specified therein,
immediately upon its receipt. The acceptance of a resignation shall not be necessary to make it
effective unless otherwise stated in the resignation. Such resignation shall be without prejudice
to the contract rights, if any, of the Company.
Section 3. VACANCIES. A vacancy in any office may be filled by the Board of
Trustees for the balance of the term.
Section 4. CHIEF EXECUTIVE OFFICER. The Board of Trustees may designate a Chief
Executive Officer. In the absence of such designation, the Chairman of the Board shall be the
Chief Executive Officer of the Company. The Chief Executive Officer shall have general
responsibility for implementation of the policies of the Company, as determined by the Board of
Trustees, and for the management of the business and affairs of the Company. The Chief Executive
Officer may execute any deed, mortgage, bond, contract or other instrument, except in cases where
the execution thereof shall be expressly delegated by the Board of Trustees or by these Bylaws to
some other officer or agent of the Company or shall be required by law to be otherwise executed;
and in general shall perform all duties incident to the office of Chief Executive Officer and such
other duties as may be prescribed by the Board of Trustees from time to time.
Section 5. CHIEF OPERATING OFFICER. The Board of Trustees may designate a Chief
Operating Officer. The Chief Operating Officer shall have the responsibilities and duties as
determined by the Board of Trustees or the Chief Executive Officer.
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Section 6. CHIEF FINANCIAL OFFICER. The Board of Trustees may designate a Chief
Financial Officer. The Chief Financial Officer shall have the responsibilities and duties as
determined by the Board of Trustees or the Chief Executive Officer.
Section 7. CHAIRMAN AND VICE CHAIRMAN OF THE BOARD. The Board of Trustees shall
designate a Chairman of the Board. The Chairman of the Board shall preside over the meetings of
the Board of Trustees and of the shareholders at which he or she shall be present. The Chairman of
the Board and the Vice Chairman of the Board, if any, shall perform such other duties as may be
assigned to him, her or them by the Board of Trustees.
Section 8. PRESIDENT. In the absence of a Chief Executive Officer, the President
shall in general supervise and control all of the business and affairs of the Company. In the
absence of a designation of a Chief Operating Officer by the Board of Trustees, the President shall
be the Chief Operating Officer and shall be ex officio a member of all committees that may, from
time to time, be constituted by the Board of Trustees. The Chief Executive Officer may execute any
deed, mortgage, bond, contract or other instrument, except in cases where the execution thereof
shall be expressly delegated by the Board of Trustees or by these Bylaws to some other officer or
agent of the Company or shall be required by law to be otherwise executed; and in general shall
perform all duties incident to the office of Chief Executive Officer and such other duties as may
be prescribed by the Board of Trustees from time to time.
Section 9. VICE PRESIDENTS. In the absence of the President or in the event of a
vacancy in such office, the Vice President (or in the event there be more than one Vice President,
the Vice Presidents in the order designated at the time of their appointment or election or, in the
absence of any designation, then in the order of their appointment or election) shall perform the
duties of the President and when so acting shall have all the powers of and be subject to all the
restrictions upon the President; and shall perform such other duties as from time to time may be
assigned to such Vice President by the President or by the Board of Trustees. The Board of
Trustees may designate one or more Vice Presidents as Executive Vice President, Senior Vice
President, or as Vice President for particular areas of responsibility.
Section 10. SECRETARY. The Secretary shall (a) keep the minutes of the
proceedings of the shareholders, the Board of Trustees and committees of the Board of Trustees in
one or more books provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law; (c) be custodian of the trust records
and of the seal of the Company; (d) keep a register of the post office address of each shareholder
which shall be furnished to the Secretary by such shareholder; (e) have general charge of the share
transfer books of the Company; and (f) in general perform such other duties as from time to time
may be assigned to him by the Chief Executive Officer, the President or by the Board of Trustees.
Section 11. TREASURER. The Treasurer shall have the custody of the funds and
securities of the Company and shall keep full and accurate accounts of receipts and disbursements
in books belonging to the Company and shall deposit all moneys and other valuable effects in the
name and to the credit of the Company in such depositories as may be designated by the Board of
Trustees. In the absence of a designation of a Chief Financial Officer by the Board of Trustees,
the Treasurer shall be the Chief Financial Officer of the Company.
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The Treasurer shall disburse the funds of the Company as may be ordered by the Board of
Trustees, taking proper vouchers for such disbursements, and shall render to the President and
Board of Trustees, at the regular meetings of the Board of Trustees or whenever it may so require,
an account of all his or her transactions as Treasurer and of the financial condition of the
Company.
Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform such duties as shall be assigned to
them by the Secretary or Treasurer, respectively, or by the President or the Board of Trustees.
Section 13. GENERAL COUNSEL. The General Counsel shall be the Chief Legal Officer
of the Company, with general control of all matters of legal import concerning the Company. The
General Counsel shall have such other powers and duties as may be assigned to him or her by the
Board of Trustees or the Chief Executive Officer.
Section 14. COMPENSATION. The compensation of the officers shall be fixed from
time to time by or under the authority of the Board of Trustees or any committee of the Board of
Trustees within the scope of its delegated authority and no officer shall be prevented from
receiving such compensation by reason of the fact that he or she is also a Trustee.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Board of Trustees or any committee of the Board of
Trustees within the scope of its delegated authority may authorize any officer or agent to enter
into any contract or to execute and deliver any instrument in the name of and on behalf of the
Company and such authority may be general or confined to specific instances. Any agreement, deed,
mortgage, lease or other document shall be valid and binding upon the Company when duly authorized
or ratified by action of the Board of Trustees or such committee and executed by an authorized
person.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the Company shall be
signed by such officer or agent of the Company in such manner as shall from time to time be
determined by the Board of Trustees.
Section 3. DEPOSITS. All funds of the Company not otherwise employed shall be
deposited or invested from time to time to the credit of the Company as the Board of Trustees, the
Chief Executive Officer, the Chief Financial Officer, or any other officer delegated the authority
by the Board of Trustees may determine.
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ARTICLE VII
SHARES
Section 1. CERTIFICATES. The Company may issue some or all of the shares of any
or all of the Companys classes or series of shares of beneficial interest without certificates if
authorized by the Board of Trustees. In the event that the Company issues shares of beneficial
interest evidenced by certificates, such certificates shall be in such form as prescribed by the
Board of Trustees or a duly authorized officer, shall contain the statements and information
required by the Maryland REIT Law (the MRL) and shall be signed by the officers of the Company in
the manner permitted by the MRL. In the event that the Company issues shares of beneficial
interest without certificates, to the extent then required by the MRL, the Company shall provide to
the record holders of such shares a written statement of the information required by the MRL to be
included on share certificates. There shall be no differences in the rights and obligations of
shareholders based on whether or not their shares are evidenced by certificates. If a class or
series of beneficial interest is authorized by the Board of Trustees to be issued without
certificates, no shareholder shall be entitled to a certificate or certificates evidencing any
shares of such class or series of beneficial interest held by such shareholder unless otherwise
determined by the Board of Trustees and then only upon written request by such shareholder to the
Secretary of the Company.
Section 2. TRANSFERS. All transfers of shares shall be made on the books of the
Company, by the holder of the shares, in person or by his or her attorney, in such manner as the
Board of Trustees or any officer of the Company may prescribe and, if such shares are certificated,
upon surrender of certificates duly endorsed. The issuance of a new certificate upon the transfer
of certificated shares is subject to the determination of the Board of Trustees that such shares
shall no longer be evidenced by certificates. Upon the transfer of uncertificated shares, to the
extent then required by the MRL, the Company shall provide to record holders of such shares a
written statement of the information required by the MRL to be included on share certificates.
The Company shall be entitled to treat the holder of record of any share of beneficial
interest as the holder in fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share or on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise provided by the laws of
the State of Maryland.
Notwithstanding the foregoing, transfers of shares of any class or series of beneficial
interest will be subject in all respects to the Declaration of Trust and all of the terms and
conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer of the Company may direct a new
certificate or certificates to be issued in place of any certificate or certificates theretofore
issued by the Company alleged to have been lost, destroyed, stolen or mutilated, upon the making of
an affidavit of that fact by the person claiming the certificate to be lost, destroyed, stolen or
mutilated; provided, however, if such shares have ceased to be certificated, no new certificate
shall be issued unless requested in writing by such shareholder and the Board of Trustees has
determined such certificates may be issued. Unless otherwise determined by an officer of the
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Company, the owner of such lost, destroyed, stolen or mutilated certificate or certificates,
or his or her legal representative, shall be required, as a condition precedent to the issuance of
a new certificate or certificates, to give the Company a bond in such sums as it may direct as
indemnity against any claim that may be made against the Company.
Section 4. FIXING OF RECORD DATE. The Board of Trustees may set, in advance, a
record date for the purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or determining shareholders entitled to receive payment of any dividend or
the allotment of any other rights, or in order to make a determination of shareholders for any
other proper purpose. Such date, in any case, shall not be prior to the close of business on the
day the record date is fixed and shall be not more than 90 days and, in the case of a meeting of
shareholders not less than ten days, before the date on which the meeting or particular action
requiring such determination of shareholders of record is to be held or taken.
If no record date is fixed, (a) the record date for the determination of shareholders entitled
to notice of or to vote at a meeting of shareholders shall be at the close of business on the day
on which the notice of meeting is mailed or the 30th day before the meeting, whichever is the
closer date to the meeting; and (b) the record date for the determination of shareholders entitled
to receive payment of a dividend or an allotment of any other rights shall be the close of business
on the day on which the resolution of the Board of Trustees, authorizing the dividend or allotment
of rights, is adopted.
When a record date for the determination of shareholders entitled to notice of and to vote at
any meeting of shareholders has been set as provided in this section, such record date shall
continue to apply to the meeting if adjourned or postponed, except when the meeting is adjourned to
a date more than 120 days or postponed to a date more than 90 days after the record date fixed for
the original meeting, in either of which case a new record date for such meeting may be determined
as set forth herein.
Section 5. SHARE LEDGER. The Company shall maintain at its principal office or at
the office of its counsel, accountants or transfer agent, an original or duplicate share ledger
containing the name and address of each shareholder and the number of shares of each class held by
such shareholder.
Section 6. FRACTIONAL SHARES; ISSUANCE OF UNITS. The Board of Trustees may issue
fractional shares or provide for the issuance of scrip, all on such terms and under such conditions
as they may determine. Notwithstanding any other provision of the Declaration of Trust or these
Bylaws, the Board of Trustees may issue units consisting of different securities of the Company.
Any security issued in a unit shall have the same characteristics as any identical securities
issued by the Company, except that the Board of Trustees may provide that for a specified period
securities of the Company issued in such unit may be transferred on the books of the Company only
in such unit.
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ARTICLE VIII
ACCOUNTING YEAR
The Board of Trustees shall have the power, from time to time, to fix the fiscal year of the
Company by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the shares of
beneficial interest of the Company may be authorized by the Board of Trustees, subject to the
provisions of law and the Declaration of Trust. Dividends and other distributions may be paid in
cash, property or shares of the Company, subject to the provisions of law and the Declaration of
Trust.
Section 2. CONTINGENCIES. Before payment of any dividends or other distributions,
there may be set aside out of any assets of the Company available for dividends or other
distributions such sum or sums as the Board of Trustees may from time to time, in its absolute
discretion, think proper as a reserve fund for contingencies, for equalizing dividends or other
distributions, for repairing or maintaining any property of the Company or for such other purpose
as the Board of Trustees shall determine and the Board of Trustees may modify or abolish any such
reserve.
ARTICLE X
PROHIBITED INVESTMENTS AND ACTIVITIES
Notwithstanding anything to the contrary in the Declaration of Trust, the Company will not,
without the approval of either a majority of the disinterested Trustees or the Audit Committee, (i)
acquire from or sell to any Trustee, officer or employee of the Company, any corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise in which a Trustee,
officer or employee of the Company owns more than a one percent interest or any affiliate of any of
the foregoing, any of the assets or other property of the Company, except for the acquisition
directly or indirectly of certain properties or interest therein, directly or indirectly, through
entities in which it owns an interest in connection with the initial public offering of shares by
the Company or pursuant to agreements entered into in connection with such offering, which
properties shall be described in the prospectus relating to such initial public offering, (ii) make
any loan to or borrow from any of the foregoing persons or (iii) engage in any other transaction
with any of the foregoing persons. Each such transaction will be in all respects on such terms as
are, at the time of the transaction and under the circumstances then prevailing, fair and
reasonable to the Company. Subject to the provisions of the Declaration of Trust, the Board of
Trustees may from time to time adopt, amend, revise or terminate any policy or policies with
respect to investments by the Company as it shall deem appropriate in its sole discretion.
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ARTICLE XI
SEAL
Section 1. SEAL. The Board of Trustees may authorize the adoption of a seal by
the Company. The seal shall contain the name of the Company and the year of its formation. The
Board of Trustees may authorize one or more duplicate seals and provide for the custody thereof.
Section 2. AFFIXING SEAL. Whenever the Company is permitted or required to affix
its seal to a document, it shall be sufficient to meet the requirements of any law, rule or
regulation relating to a seal to place the word (SEAL) adjacent to the signature of the person
authorized to execute the document on behalf of the Company.
ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland statutory or decisional law in effect from time to
time, the Company shall indemnify and, without requiring a preliminary determination of the
ultimate entitlement to indemnification, shall pay or reimburse, reasonable expenses in advance of
final disposition of a proceeding to (a) any individual (including the individuals spouse,
children, heirs, estate, executors, or personal or legal representatives for claims arising out of
the status of such spouse, children, heirs, estate, executors or personal or legal representatives
of such individual (collectively, the Other Individuals) who is a present or former Trustee or
officer of the Company and who is made or threatened to be made a party to the proceeding by reason
of his or her service in that capacity or (b) any individual (including Other Individuals) who,
while a Trustee or officer of the Company and at the request of the Company, serves or has served
as a Trustee, officer, partner or trustee of another corporation, real estate investment trust,
partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or
threatened to be made a party to the proceeding by reason of his or her service in that capacity.
The rights to indemnification and advance of expenses provided by the Declaration of Trust and
these Bylaws shall vest immediately upon election of a Trustee or officer. The Company may, with
the approval of its Board of Trustees, provide such indemnification and advance for expenses to an
individual (including Other Individuals) who served a predecessor of the Company in any of the
capacities described in (a) or (b) above and to any employee or agent of the Company or a
predecessor of the Company. The indemnification and payment or reimbursement of expenses provided
in these Bylaws shall not be deemed exclusive of or limit in any way other rights to which any
person seeking indemnification or payment or reimbursement of expenses may be or may become
entitled under any bylaw, regulation, insurance, agreement or otherwise.
Neither the amendment nor repeal of this Article, nor the adoption or amendment of any other
provision of the Bylaws or Declaration of Trust inconsistent with this Article, shall apply to or
affect in any respect the applicability of the preceding paragraph with respect to any act or
failure to act which occurred prior to such amendment, repeal or adoption.
Any indemnification or payment or reimbursement of the expenses permitted by these Bylaws
shall be furnished in accordance with the procedures provided for indemnification or
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payment or reimbursement of expenses, as the case may be, under Section 2-418 of the MGCL for
directors of Maryland corporations. The Company may provide to Trustees and officers such other
and further indemnification or payment or reimbursement of expenses, as the case may be, to the
fullest extent permitted by the MGCL, as in effect from time to time, for directors of Maryland
corporations.
ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Declaration of Trust or Bylaws or
pursuant to applicable law, a waiver thereof in writing, signed by the person or persons entitled
to such notice, whether before or after the time stated therein, shall be deemed equivalent to the
giving of such notice. Neither the business to be transacted at nor the purpose of any meeting
need be set forth in the waiver of notice, unless specifically required by statute. The attendance
of any person at any meeting shall constitute a waiver of notice of such meeting, except where such
person attends a meeting for the express purpose of objecting to the transaction of any business on
the ground that the meeting is not lawfully called or convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
The Board of Trustees shall have the exclusive power to adopt, alter or repeal any provision
of these Bylaws and to make new Bylaws.
ARTICLE XV
MISCELLANEOUS
All references to the Declaration of Trust shall include all amendments and supplements
thereto and any other documents filed with the State Department of Assessments and Taxation related
thereto, whether effective prior or subsequent to the date hereof.
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